2016 P Cr (PLP)

SYED SHAHBAZ ALI RIZVI, J.

This judgment shall dispose of Criminal Appeal No.1004 of 2008 titled as Muhammad Nawaz v. The State filed by Muhammad Nawaz (appellant) against his conviction and sentence and Murder Reference No.212 of 2008 titled as The State v. Muhammad Nawaz transmitted by the learned trial court for confirmation or otherwise of the sentence of death awarded to Muhammad Nawaz (appellant), as both these matters have arisen out of the same judgment dated 19.07.2008 passed by the learned Addl. Sessions Judge, Tandlianwala District Faisalabad in case FIR No.692 dated 18.08.2007, offence under section 302, P.P.C. registered at Police Station Saddar Tandlianwala District Faisalabad whereby, the appellant was convicted under section 302(b), P.P.C. and sentenced to death with the direction to pay Rs.100,000/- as compensation to the legal heirs of the deceased Mst. Shahnaz Bibi as envisaged under section 544-A of the Code of Criminal Procedure, 1898 and in default thereof to undergo rigorous imprisonment for six months.

2. Brief facts of the case, as disclosed by Muhammad Iqbal, complainant (PW-8), in his statement (Exh-PE) on the basis of which formal FIR (Exh-PE/2) was registered, are that he was resident of Chak No.431/G.B. He had come to brick kiln of Azeem Khan Pathan situated in the area of Chak No.409/G.B. to see his maternal nephews. During the night, they, as per routine, slept in the open place in front of the residential rooms of brick kiln. At about 03.00 a.m, on hearing the noise, he along with Ameer Ali (PW-9) and his maternal niece Mst. Mumtaz Bibi woke up. Meanwhile, in the light of bulb, they saw that Muhammad Nawaz (appellant) armed with hoe (Kassi) entered into the courtyard who inflicted three consecutive blows of hoe at the head and neck of Mst. Shahnaz Bibi who was sleeping on a cot which landed on her neck and forehead. On hue and cry, many people who were sleeping on cots woke up. Meanwhile, the appellant fled away from the spot while brandishing the hoe in air. The occurrence was witnessed by him, his maternal niece Mst. Mumtaz Bibi (PW-11) and Ameer Ali (PW-09). They took care of Mst. Shahnaz Bibi who succumbed to the injuries at the spot. The motive behind the occurrence, as disclosed by the complainant in his statement (Exh-PE), was that Muhammad Nawaz (appellant) demanded the hand of his maternal niece for marriage and due to this grudge, the appellant committed the murder of sister of the complainant who was wife of Falak Sher, in his view also. The proposal for marriage was refused.

3. Muhammad Nawaz (appellant) was arrested in this case on 31.08.2007 by Lal Khan SI (PW-12) who, on 03.09.2007, while in police custody, after making disclosure, got recovered blood stained hoe (P-1), which was taken into possession vide recovery memo Exh -PF. After completion of investigation, the challan was prepared and submitted before the learned trial court. The learned trial court, after observing legal formalities, as provided under the Code of Criminal Procedure, 1898 framed charge against the appellant on 07.03.2008, to which he pleaded not guilty and claimed trial.

4. In order to prove its case, the prosecution produced as many as twelve witnesses, during the trial. Muhammad Iqbal, complainant (PW-8), Ameer Ali (PW-9), Falak Sher (PW-10) and Mumtaz Bibi (PW-11) furnished the ocular account. Ameer Ali (PW-9) and Falak Sher (PW-10) are also the witnesses of alleged recovery of hoe (P-1) at the instance of the appellant. The medical evidence was furnished by Dr. Rehana Tamkeen (PW-2) who, on 18.08.2007 at about 02.00 p.m, conducted the post mortem examination on the dead body of Mst. Shahnaz Bibi and found the following injuries on her body:- "1) An incised wound 8 cm x 1.5 cm on the left side of face, cheek. Upper jaw fractured. 2) An incise stabbed wound 22 cm x 0.5 cm in the lower side of face starting from below and in front of right ear, chin, upto below the left ear. Both sides lower jaws and chin was cut, deep up to the verterbs." In her opinion, the death of lady was due to injuries Nos.1 and 2 on the face which were caused by sharp edged weapon that damaged both upper and lower jaws, main blood vessels and nerves were cut on both sides leading to huge external haemorrhage shock cardio pulmornay arrest and death and these were ante-mortem and could cause death in ordinary course of nature. The probable duration between injuries and death was immediate within about five minutes and between death and post mortem ten to twelve hours. Lal Khan SI (PW-12) is the Investigating Officer of this case and Akbar Ali, Draftsman (PW-5) prepared scaled site plan (Exh-PD) of the occurrence whereas, rest of the witnesses are formal in nature.

5. Learned Deputy District Public Prosecutor gave up Abdul Ghafoor and Dilmeer Khan PWs being unnecessary and after tendering in evidence reports of Chemical Examiner (Exh-PK) closed the case for prosecution.

6. The statement of the appellant, under section 342 of the Code of Criminal Procedure, was recorded on 12.07.2008. He refuted the allegations levelled against him and professed his innocence. While answering to a question that "Why the PWs deposed against you?", the appellant replied as under:- "PWs deposed due to previous enmity and grudge and due to close relationship with deceased." In reply to another question that "Why this case against you?, the appellant replied as under:- "Due to enmity."

7. The appellant neither opted to give evidence on oath as provided under section 340(2) of the Code of Criminal Procedure, in disproof of the allegations levelled against him nor did he produce evidence in his defence.

8. The learned trial court vide its judgment dated 19.07.2008 found the appellant guilty, convicted and sentenced him as mentioned and detailed above.

9. Learned counsel for the appellant in support of this appeal contends that there is delay of about four and half hours in reporting the matter to the police without any satisfactory explanation; that the appellant has falsely been implicated in this case; that the eye-witnesses were not the residents of the place where the occurrence took place and they are the chance witnesses; that the prosecution witnesses are interested witnesses; that the medical evidence is in conflict with the ocular account; that the alleged recovery of hoe (Kassi) is inconsequential as there is no report of Chemical Examiner and Serologist available on the file regarding said hoe; that the motive has not been proved by the prosecution; that prosecution has failed to prove its case against the appellant beyond any shadow of reasonable doubt; that this appeal may be accepted and the appellant may be acquitted of the charge levelled against him. Learned counsel further contends that a compromise was effected between the parties which could not be completed due to inability of the appellant to pay Diyat amount to the minor legal heir of the deceased.

10. On the other hand, learned Deputy Prosecutor General opposes this appeal on the grounds that the appellant is nominated in the promptly lodged FIR; that the eye-witnesses except Muhammad Iqbal, complainant (PW-8) are natural witnesses being the residents of the place where this occurrence took place; that Muhammad Iqbal, complainant (PW-8) has reasonably explained his presence at the spot; that the prosecution case is fully corroborated by the medical evidence; that the prosecution case is further corroborated by the recovery of hoe (P-1) at the instance of the appellant; that the prosecution case is also corroborated by the motive; that the prosecution has proved its case against the appellant beyond any shadow of reasonable doubt; that this appeal may be dismissed and the Murder Reference may graciously be answered in affirmative keeping in view the brutal act of the appellant.

11. We have heard the arguments of learned counsel for the appellant, learned Deputy Prosecutor General and also scanned the record with their able assistance.

12. We have noticed that the occurrence of this case took place at 03.00 a.m. and the matter was reported to the police at 07.30 a.m, the FIR was registered at 07.50 a.m. while the distance between the place of occurrence and the police station is only four kilometers and according to complainant Muhammad Iqbal (PW-8), he got recorded his statement (Exh-PE) at the place of occurrence. No reason for his mysterious inactivity qua the reporting of matter to police till 07.30 a.m. has been given by the complainant which is surely an unnatural behaviour on his part. Similarly, the postmortem examination of the deceased was conducted at 02.00 p.m. i.e. with the further delay of more than six hours which has also not been explained. This inordinate and unexplained delay in reporting the matter to the police and in postmortem examination of the deceased reflects adverse to the veracity of prosecution story narrated in the FIR by the complainant, in the circumstances of this case, as has already been held by this Court as well as by the Hon'ble Supreme Court of Pakistan in the case of "Muhammad Riaz v. The State" (2009 PCr.LJ 1022 Lahore) wherein, this Court has observed as under:- "13. ...It is also not found correct that the FIR had been got registered with promptitude as the occurrence had allegedly taken place at about 5-00 a.m. while the post-mortem examination was conducted at 1-00 p.m. and there is every possibility that the intervening period was consumed in concocting a story and to await for the relatives of the deceased, who were made witnesses subsequently, otherwise, they have failed to establish their presence at the spot..." Same view was affirmed by the Hon'ble Supreme Court of Pakistan in the case of Irshad Ahmed v. The State (2011 SCMR 1190), wherein the Hon'ble Supreme Court was pleased to observe as under:- "3. ...We have further observed that the post-mortem examination of the deadbody of Shehzad Ahmed deceased had been conducted with a noticeable delay and such delay is generally suggestive of a real possibility that time had been consumed by the police in procuring and planting eye-witnesses and in cooking up a story for the prosecution before preparing police papers necessary for getting a post-mortem examination of the deadbody conducted..."

13. The prosecution has produced Muhammad Iqbal, complainant (PW-8), Ameer Ali (PW-9), Falak Sher (PW-10) and Mst. Mumtaz Bibi (PW-11) to furnish the ocular account of the occurrence to prove its case but perusal of their statements and the statement of Lal Khan, SI, Investigating Officer (PW-12) reflects that all these witnesses are the chance witnesses. The relevant part of the statement of Lal Khan, S.I. (PW-12), the Investigating Officer of the case reads as under:- "...It is correct that Muhammad Iqbal PW is resident of Chak No.431/GB, Ameer Ali PW is resident of of Chak No.425/GB, Falik Sher is resident of Chak No.422/GB and Mst. Mumtaz Bibi PW is resident of Chak No.427/GB..." Moreover, it is a dark night occurrence, though the source of light i.e. electric bulb is mentioned in the FIR yet neither the same was pointed out by the prosecution witnesses to the Investigating Officer nor anything is mentioned in the un-scaled site plan (Exh-PJ) and scaled site plan (Exh-PD). Similarly, Lal Khan SI (PW-12), the Investigating Officer has also not taken the bulb into possession and in such like situation, the Hon'ble Supreme Court of Pakistan has disbelieved the prosecution story qua the source of light. Reliance in this respect is placed on the case of Bashir Ahmed alias Mannu v. The State (1996 SCMR 308) wherein, the Hon'ble Supreme Court was pleased to observe as under:- "...The occurrence took place at mid-night. The prosecution had attempted to show that eye-witnesses were able to see the occurrence in the light of a bulb which was burning at that time. The bulb was not taken into custody for no reasons..." Same view was reiterated by the Hon'ble Supreme Court of Pakistan in the case of Nazeer Ahmad v. Gehne Khan and others (2011 SCMR 1473). Similarly, the ocular account, from the very beginning, is discrepant with the medical evidence produced by the prosecution itself according to the FIR as alleged by the complainant Muhammad Iqbal (PW-8) therein that the appellant caused three hoe blows on the neck and forehead of the deceased while when he appeared as PW-8 before the learned trial court, he improved his statement and maintained that three blows of hoe landed on the neck, mouth and head of the deceased. Ameer Ali (PW-9) maintained that the appellant caused two hoe blows on the neck, one blow on the mouth and one blow of hoe on the head of the deceased (4 blows in total). Falak Sher (PW-10) stated that the appellant caused 2/3 blows on the neck, one on the face and other on the head and similarly, when Mst. Mumtaz Bibi (PW-11) appeared, she stated that the appellant caused one blow on the neck, one blow on the face and one blow on the head while the medical evidence as furnished by the Medical Officer (PW-2) and as reflected in the postmortem examination report, there are two injuries available on the person of deceased. Injury No.1 was on the left side of face, cheek, upper jaw fractured and injury No.2 was in the lower side of face. There is no injury on the head and neck of the deceased. This material inconsistency and discrepancy between the medical evidence and ocular account also renders the presence of the witnesses at the scene of occurrence and their statements doubtful. We have minutely observed the prosecution story given by the complainant and the witnesses and have found the same not believable and natural as according to the prosecution's case, three male persons and one young lady, closely related to the deceased, were present at the scene of occurrence but neither anybody could stop the appellant, as according to their own version, they had seen the appellant prior to the infliction of the injuries to the deceased nor they could apprehend him after infliction of injuries to deceased which was possible as hoe is not a weapon that could threaten four village dwellers sufficient to stop them from apprehending the sole culprit/appellant who had committed such an occurrence in their view. We are of the view that had the witnesses been present there, they would have successfully interfered and apprehended the appellant. It shows that none of the witnesses witnessed the occurrence. We have also noticed that the Investigating Officer Lal Khan, S.I. (PW-12) has maintained that none from the vicinity including the owner of brick kiln appeared before him to verify the stance of the PWs. In this view of the matter, as the statements of the witnesses are not believable and appealing to the mind, being improbable and unnatural, the same cannot be relied upon to maintain the conviction of the present appellant as is held by the Hon'ble Supreme Court of Pakistan in the case of Haroon alias Harooni v. The State and another (1995 SCMR 1627) wherein, the Hon'ble Supreme Court was pleased to observe as under: - "9. ...Since the facts of the two cases seldom coincide, therefore, no hard and fast rule for the appreciation of evidence can be laid down. The general rule, however, is that the statement of a witness must be in consonance with the probabilities, fitting in the circumstances of the case and also inspire confidence in the mind of a reasonable prudent man. If these elements are present, then the statement of worst enemy of an accused may be accepted and relied upon without corroboration, but if these elements are missing, then statement of a pious man may be rejected without second thought." Same view was reiterated by the Hon'ble Supreme Court of Pakistan in the case of Muhammad Saleem v. The State (2010 SCMR 374). We have also noticed that according to the prosecution's case, the deceased was sleeping on a cot when she sustained injuries and died but the cot has never been taken into possession and availability of blood on the bedding or cot is not the case of prosecution.

14. Though the recovery of hoe (P-1) has been alleged by the prosecution yet the fact remains that the alleged crime weapon i.e. hoe (P-1) was effected from an open place accessible to all and even, no report of Chemical Examiner or the Serologist is available, to make it a connecting incriminating evidence against the appellant, on record hence, the same is inconsequential to the prosecution case.

15. In the same way, except Muhammad Iqbal, complainant (PW 8), none of the prosecution witnesses including Mst. Mumtaz Bibi (PW-11) stated anything about the motive during their statements especially in examination-in-chief before the learned trial court. Even it has not been explained that when the proposal was made and turned down. No direct witness to the same ever appeared before the Investigating Officer or the learned trial court. In this view of the matter, we are of the view that the prosecution could not prove the motive against the appellant. Even otherwise, when the direct evidence has been disbelieved as discussed above, the conviction cannot be based merely on the basis of corroboratory pieces of evidence like recovery and motive. In this view of the matter, having considered all pros and cons of the case, we have come to an irresistible conclusion that the prosecution remained fail to prove its case against the appellant beyond reasonable doubt.

16. It is, by now, well established principle of law that it is the prosecution, which has to prove its case against the accused by standing on its own legs and it cannot take any benefit from the weaknesses of the case of the defence. In the instant case, the prosecution remained fail to discharge its responsibility of proving the case against the appellant. It is by now well settled law that if there is a single circumstance which creates reasonable doubt regarding the prosecution case, the same is sufficient to give benefit of the same to the accused, whereas, the instant case is replete with circumstances which have created serious doubts about the prosecution story. In the case of Tariq Pervez v. The State (1995 SCMR 1345), the Hon'ble Supreme Court of Pakistan, at page 1347, was pleased to observe as under:- "5. ...The concept of benefit of doubt to an accused person is deep-rooted in our country. For giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right." In Ayub Masih v. The State" (PLD 2002 SC 1048), at page 1056 the Hon'ble Apex Court has been pleased to observe as under:- "....It is hardly necessary to reiterate that the prosecution is obliged to prove its case against the accused beyond any reasonable doubt and if it fails to do so the accused is entitled to the benefit of doubt as of right. It is also firmly settled that if there is an element of doubt as to the guilt of the accused the benefit of that doubt must be extended to him. The doubt of course must be reasonable and not imaginary or artificial. The rule of benefit of doubt, which is described as the golden rule, is essentially a rule of prudence which cannot be ignored while dispensing justice in accordance with law. It is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent person be convicted". In simple words it means that utmost care should be taken by the Court in convicting an accused. It was held in The State v. Mushtaq Ahmad (PLD 1973 SC 418) that this rule is antithesis of haphazard approach or reaching a fitful decision in a case. It will not be out of place to mention here that this rule occupies a pivotal place in the Islamic Law and is enforced rigorously in view of the saying of the Holy Prophet (p.b.u.h) that the "mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent." The Hon'ble Supreme Court of Pakistan while reiterating the same principle in the case of Muhammad Akram v. The State (2009 SCMR 230), at page 236, observed as under:- "13. ...It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. It was observed by this Court in the case of Tariq Pervez v. The State 1995 SCMR 1345 that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right."

17. In the light of above discussion, we are of the view that the prosecution has failed to prove its case against the appellant beyond the shadow of any reasonable doubt, therefore, we accept Criminal Appeal No.1004 of 2008 filed by Muhammad Nawaz (appellant), set aside his conviction and sentence recorded by the learned trial court and acquit him from the charge levelled against him by extending him the benefit of doubt. He is in custody, be released forthwith if not required in any other case.

18. Murder Reference No.212 of 2008 is answered in the NEGATIVE and the sentence of death of Muhammad Nawaz (convict) is NOT CONFIRMED. HBT/M-57/L Appeal accepted.